Icon Building Services v Waverley Council - [2007] NSWLEC 295

Land and Environment Court

of New South Wales

CITATION: Icon Building Services v Waverley Council [2007] NSWLEC 295

PARTIES:
APPLICANT
Icon Building Services
RESPONDENT
Waverley Council

FILE NUMBER(S): 10081 of 2007

CORAM: Moore C

KEY ISSUES: Development Consent :-
Modification application
Off-street parking

CASES CITED: Zhang v Canterbury City Council (2001) 115 LGERA 373;
Stockland Development Pty Ltd v Manly Council [2004] NSWLEC 472

DATES OF HEARING: 23 May 2007

EX TEMPORE JUDGMENT DATE: 23 May 2007

LEGAL REPRESENTATIVES:
APPLICANT
Mr G McKee, solicitor
McKees Legal Solutions
RESPONDENT
Mr S Patterson, solicitor
Wilshire Webb

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

MOORE C

23 May 2007

07/10081 Icon Building Group v Waverley Council

JUDGMENT

This decision was given as an extemporaneous decision. It has been revised and edited prior to publication.
The consequence of the Court’s decision in this appeal is the modification of the conditions of a development consent. These conditions are not reproduced as part of this decision but are available for inspection at the Council. In addition, a copy the Court’s Orders and the conditions may be obtained from the Court’s registry upon payment of a fee. Details of the fee payable and process for obtaining a copy of the Orders and conditions are available on the Court’s web site at

1. COMMISSIONER: This is an appeal of pursuant to s 96 of the Environmental Planning and Assessment Act 1979 (the Act) against the refusal by Waverley Council (the Council) on 21 August 2006 of an application to modify Development Consent DA-497/2005 for additions and alterations to 29 Anglesea Street, Bondi (the site).

2. The house presently located on the site is one of a pair of semi-detached houses located on the western side of the street. Immediately in front of the site, no street parking is permitted on the site’s side of the street.

3. The modification application sought the deletion of a condition of consent which condition, itself, required the deletion of a proposed car parking space in the front setback to the dwelling.

4. The modification application included revised plans for a longer car parking space than had originally been proposed – however, that longer space is no longer pursued by the applicant.

5. As a result of discussions on site during the course of the view, Mr McKee, solicitor for the applicant, foreshadowed amendments to the design that would have had the effect of:

restricting the entry to the parking space from the street to be 2 m wide;

creating a landscaped area generally 1.6 m wide at the street frontage and at the front to the house but bowing out in the middle to permit vehicle doors to be opened;

planting of an additional tree and, if necessary, the replacement of the existing palm tree and the planting of a further additional tree;

the treatment of the surface of the pathway and the proposed parking space to be an open chequerboard grass and concrete surface.

6. The applicant…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2007] NSWLEC 295
Decision Date: 23 May 2007

CaseChat Overview and Summary

Icon Building Services (the Applicant) appealed against Waverley Council's (the Council) refusal to modify Development Consent for modifications to a house at 29 Anglesea Street, Bondi. The Council refused the Applicant's application to delete a condition that required the Applicant to delete a proposed car parking space in the front setback of the dwelling. The Applicant proposed amendments to the design, including landscaping and restrictions on vehicle length and overhanging into the public domain. The Council cited provisions in the Waverley Development Control Plan 2006 regarding vehicular access, parking, and off-street parking controls.

The court had to decide whether the proposed parking space complied with the objectives of the Development Control Plan and whether it was appropriate to allow the modification despite any breaches of the Plan. The court found that the proposed parking space did not unreasonably detract from the appearance and quality of the dwelling or streetscape, maximised pedestrian and vehicular safety, minimised the loss of on-street car parking, and did not affect views from the public domain. The court also considered the provision of a larger landscaping area as a positive contribution to the streetscape.

The court held that the proposed parking space could make a positive contribution to the streetscape, despite not fully complying with the minimum dimensions for a parking space. The court also found that the proposed design allowed for adequate sightlines for exiting vehicles and would not prevent the use of the pathway area for opening car doors or exiting passengers from a vehicle. The court concluded that the appeal would be upheld, and the development consent plans would need to be revised to give effect to the matters discussed.

Orders